The Supreme Court's Wrong Turn -- And How to Fix It

After posing as moderates, Justices Roberts and Alito have moved the Court radically to the right.

Last May, the Supreme Court faced a textbook case of pay discrimination. Lilly Ledbetter was one of a few women supervisors working at a Goodyear Tire and Rubber Company plant in Gadsden, Alabama, and she remained at the plant despite her bosses' bias against women. One even told her that "the plant did not need women," that women "caused problems." For almost two decades, the company systematically downgraded her performance evaluations to pay her less than male colleagues who performed the same duties. Her pay eventually fell 15 percent to 40 percent behind her male counterparts.

In 2003 a jury found that Ms. Ledbetter was paid less because she is a woman, and she was awarded full damages to correct the injustice. But in a 5-4 opinion, the Supreme Court held that Ms. Ledbetter was entitled to nothing at all. The majority ruled that she should have filed her case within a few months after the employer decided to pay her less than her male coworkers. Never mind that she had no way of knowing what other workers made, or that the discrimination continued with each paycheck. Justice Ruth Bader Ginsburg, the sole female justice, observed in dissent: "The Court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination."

Unfortunately, the Ledbetter case is just one example of the Supreme Court's dangerous new direction since the additions of Chief Justice John Roberts and Justice Samuel Alito. It is vital that Americans understand how profoundly the newest justices are affecting the Court, and how their confirmation hearings failed to anticipate these developments. Whether or not it was possible to prevent confirmation of the president's Supreme Court nominees by a Republican-controlled Senate, the confirmation hearings should, at the very least, have informed the public about the nominees' views on the pressing legal issues of our time. Their failure to do so makes clear that the Senate needs to reform the process by which it considers Supreme Court nominees.

LOOKING BACK

As we enter the third year of the lifetime appointments of Roberts and Alito to the Court, it is clear that their approach to judging mocks the commitment to open-mindedness, modesty, and compassion that they professed during their confirmation hearings. President Bush had openly expressed his desire to select judges who would satisfy the most radical voices in his political base. We now know that the president got exactly what he wanted.

For two judges who repeatedly proclaimed in their confirmation hearings that they would bring no ideological agenda to the job and would decide cases with an "open mind," Roberts and Alito have turned out to be remarkably like-minded. They voted together in 92 percent of non-unanimous cases in the 2006–2007 term -- the highest rate of agreement of any two justices, edging out Antonin Scalia's and Clarence Thomas' 91 percent rate. In the previous term, Roberts and Alito voted together 88 percent of the time in non-unanimous cases.

For two judges who repeatedly proclaimed the need for judicial "modesty," Roberts and Alito have turned out to be remarkably aggressive in overturning doctrines and statutes. Their disdain for precedent led Justice Stephen Breyer to recently observe, "It is not often in the law that so few have so quickly changed so much." Justice Scalia appeared to share this view. When Roberts claimed that a recent opinion involved only a modest change in the law, Scalia responded, "This faux judicial restraint is judicial obfuscation."

And for two judges who repeatedly proclaimed a concern for the real-world impact of their decisions, Alito and Roberts have turned out to be remarkably blinded to the plight of America's most vulnerable. Over and over again, they've voted to narrow core rights and freedoms of the American people, and to expand the power of corporations and the executive branch.

A few examples from the previous Supreme Court term show how the confirmation hearings elicited only platitudes, and thereby allowed the nominees to evade consideration of their views on the concrete legal issues likely to come before the Court. In the case of Lilly Ledbetter, the votes by Roberts and Alito to deprive her of a remedy for pay discrimination seem surprising in light of their testimony. In response to questions about protecting minorities and the powerless, Roberts claimed that he had "argued for broader protection of civil rights on many occasions," and stressed that as a litigator he had "argued on both sides of [the affirmative action] issue." Alito told the Committee that "the judicial process has to be attentive to the fact that discrimination exists and, today, a lot of it's driven underground."

At their confirmation hearings, Roberts and Alito were asked repeatedly by senators on both sides of the aisle about their views on abortion. They assured the committee that they would follow Supreme Court precedents, but they refused to discuss in any detail how such precedents ought to be applied, or even to say whether they believed that Roe v. Wade and later cases interpreting it had been correctly decided. Soon after joining the Court, both justices cast aside recent precedent, voting to uphold a federal law banning a procedure for late-term abortions that was virtually identical to a law the Court had struck down in 2000. The opinion joined by Roberts and Alito adopted the assumption -- which has been refuted by empirical evidence -- that women should be prevented from making certain abortion decisions because they often come to regret those decisions later. This paternalistic argument has opened the door for further incursions into Roe v. Wade.

The recurring statements by Roberts and Alito during their confirmation hearings that they would respect precedent also conflict with their votes in FEC v. Wisconsin Right to Life, a 5-4 decision that struck down a key provision of the McCain-Feingold campaign finance law regulating issue ads. This ruling essentially reversed a precedent that was only four years old. The Court's sharp reversal significantly hinders the ability of Congress to rein in runaway political spending, which has left many Americans disillusioned about the state of our democracy.

Roberts and Alito also provided the decisive votes in cases limiting the basic rights of criminal defendants. In Bowles v. Russell, the Court rejected as untimely the appeal of a man facing 15 years in prison, even though he had filed his claim late only because he had relied on the word of a federal judge, who had mistakenly provided an incorrect deadline. As Justice David Souter said of this display of bureaucratic inhumanity, "It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch."

Yet when Roberts was asked about criminal sentencing during the confirmation process, he said that "no American -- and certainly no judge -- welcomes the fact that among the more than one million criminal convictions handed down yearly in the United States, some are erroneous," adding that "it is the role of judges in both the state and federal systems to be constantly vigilant in guarding against wrongful convictions." Likewise, Alito affirmed that preventing the conviction of an innocent person is "one of the most fundamental rights protected by our Constitution." These statements are difficult to reconcile with both Roberts' and Alito's refusal to consider the claim of a man whose appeal was filed late because of a federal trial judge's mistake, and with their votes against defendants in every one of the 2006–2007 term's non-unanimous criminal cases.

Perhaps the clearest indication of the ideological bent of Roberts and Alito came in the final decision of the term, Parents Involved in Community Schools v. Seattle School District No. 1, a case testing the constitutionality of the use of race in voluntary desegregation programs in Seattle, Washington, and Jefferson County, Kentucky. School boards in these districts had adopted voluntary integration plans to achieve diverse educational environments and prevent the harms of segregated schools. Turning Brown v. Board of Education on its head, the Court equated these racially inclusive plans with the racially oppressive policies of Jim Crow, declaring them unconstitutional. Even more troubling, although a majority of the Court recognized that school boards and communities may take race into account when necessary to achieve integration, Roberts and Alito disagreed.

The views of Roberts and Alito in the desegregation case stand in stark contrast to their testimony at their confirmation hearings. When he testified before the Senate Judiciary Committee, Roberts was asked whether he believed that the Supreme Court in Brown v. Board of Education properly based its decision on "the real world consideration of the role of public education at the time of its decision." He responded that "you have to look at the discrimination in the context in which it is occurring." He explained that Brown held that "the act of separation is what constituted the discrimination." Roberts also heartily agreed with my statement that "having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength of our society." Alito likewise praised Brown and the diversity of students in the law school classes he taught.

Yet Roberts' opinion in Parents Involved completely ignored these principles. There was no detailed discussion of the racially segregated housing patterns that made segregated schools inevitable without action by the school districts. Also lacking was any serious description of the harm to minority children in racially segregated schools, although that harm was described extensively in the record and in amicus briefs submitted to the Court. Indeed, the inability to distinguish between the evils of forced segregation and the benefits of voluntary integration makes Roberts' pledge to consider the real-world context of discrimination ring hollow.

LOOKING FORWARD

While it is important to appreciate just how alarming the previous Supreme Court term was, it is more important to identify constructive steps that can be taken in the months ahead. Certainly, where the Court has misinterpreted the intent of congressional statutes, Congress can act to correct the problem. Thus, in response to the Ledbetter case, a number of us in the Senate are sponsoring the bipartisan Fair Pay Restoration Act, which will restore the ability of employees to challenge ongoing pay discrimination within a reasonable time after receiving a discriminatory paycheck. Similar legislation has already passed the House.

What is needed most, though, is a longer-term solution: reforming the Supreme Court confirmation process. If there is one central lesson to be learned from the Roberts and Alito hearings, it is that general platitudes are no substitute for concrete statements about a nominee's constitutional views. The Senate should require more from Supreme Court nominees.

The stakes could hardly be higher. Because every Supreme Court term raises profound and controversial legal questions, every appointment to the Court has immense consequences for our nation -- not just on hot-button social issues such as abortion and affirmative action, but also on issues of workers' rights, civil rights and civil liberties, health care, the environment, consumer safety, and the limits of executive power, to name just a few.

Because the stakes are so high, I believe it is a defect in our judicial confirmation system that nominees can be confirmed to the Court without ever telling Americans what they think about the most pressing legal issues of our time. By this standard, the Roberts and Alito confirmation hearings were a failure. The White House concealed information about its nominees and insisted that the Senate confine its inquiry to their personal qualities. Many Republican senators used their time to praise the nominees, rather than to probe their legal philosophies. When faced with more pointed questions, Roberts and Alito stonewalled. On several critical issues, they refused to answer except in the most general terms, stating that it would be improper for them to discuss issues that might come before them when on the bench.

All of this is backward. The White House should be forthcoming about the beliefs of the candidates it puts forward. After all, those beliefs were the principal reason the president selected them. The Senate should ask tough questions about the nominees' constitutional views, and the nominees should answer them. Senators on both sides of the aisle should agree that, at a minimum, nominees must give full and forthright responses when asked about their legal views.

Supreme Court nominees like Roberts and Alito, however, have drawn a line in the sand and refused to answer these questions. To do so, they claim, would compromise their duty to decide every case with an open mind. This argument was designed to give an air of nobility to the nominees' refusal to answer reasonable questions posed by the Judiciary Committee. The reality is that political convenience, not principle, motivated much of this rhetoric. Legal scholars increasingly agree that judicial nominees can be candid about their views on many issues without doing damage to the judicial system or the rights of future litigants. All nominees to the Supreme Court should have spent many years thinking deeply about legal issues. To keep the American people in the dark about that thinking is not noble; it is a violation of our constitutional design and our democratic principles. It prevents the Senate from carrying out its constitutional obligation to evaluate Supreme Court candidates.

As former Chief Justice William Rehnquist once wrote, "It would be not merely unusual, but extraordinary, if [Supreme Court nominees] had not at least given opinions as to constitutional issues in their previous legal careers. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." In fact, a recent decision by Scalia, in Republican Party of Minnesota v. White, affirmed that judges who run for office are free to announce their views on controversial legal and political issues, without prejudicing their role in deciding those issues from the bench.

We know from their past decisions how all of the current justices interpret Roe v. Wade, yet they are not precluded from sitting on future cases involving abortion. Why shouldn't we also learn how Supreme Court nominees view that decision and other important cases? If all nominees were expected to answer these questions, the White House would no longer seek out "stealth" nominees whose views are largely unknown.

To protect the independence and autonomy of the courts, questions addressed to specific pending or future cases should be avoided. But there is no good reason for nominees to refuse to state how they would have voted in cases the Supreme Court has already decided. The facts, briefs, and oral arguments from those cases are all a matter of public record. Questions about decided cases should be at the heart of confirmation hearings, because they provide the most concrete information available about what kind of justice the nominee will be. Judges decide real cases. To be able to evaluate nominees in a meaningful way, the Senate and the public need to know how a nominee is likely to decide them.

Nor should nominees who previously served as high-ranking government officials, as Roberts and Alito did, be able to get away with claiming they were just "representing a client" when asked about advice they gave as legal policy-makers. It is fair to ask whether they personally agree with the legal positions they advocated in their prior roles.

If senators can agree that obtaining a detailed explanation of nominees' legal views is the goal of the confirmation process, it should be possible to adopt procedural reforms to support that goal. The Senate should insist on having the same access as the administration does to the nominees' writings and other relevant documents, and it should receive those records before the confirmation hearing begins. Each member of the Judiciary Committee should have the right to submit a limited number of written questions to the nominee, which the nominee must answer in writing under oath before the confirmation hearings. The Judiciary Committee might also consider allowing longer rounds of questions at the hearings to permit more in-depth dialogue.

While many procedural reforms could improve the Senate's ability to elicit the information so important to the public, the single most fundamental change will require only a bit of honesty. Everyone should acknowledge that it does not compromise the integrity or impartiality of the judiciary to require nominees to tell the Senate what they think about specific legal issues.

It is no exaggeration to say that the next Supreme Court appointee will have a decisive role in shaping the law on abortion, affirmative action, campaign finance, federalism, and countless other matters. Regardless of the outcome, Americans have a right to learn how a nominee views the law before it is too late. After posing as moderates in their confirmation hearings, extremist justices have moved the Supreme Court far to the right of the American mainstream. I have participated in 23 hearings on nominations to the Court, and the Roberts and Alito hearings stand out for their failure to illuminate the substance of the nominee's legal views.

The next Supreme Court justice may well be nominated by a Democratic president and sent to a Democratic Senate for confirmation. But the need for reform transcends party politics, and now -- when there is no nomination on the horizon and it is unclear who will make the next nomination -- is an opportune time for the parties to work together for reform.

Democracy and the Constitution are poorly served by silence and secrecy. Many steps can be taken to repair our system for nominating and confirming Supreme Court justices, but the most basic step is to demand a more searching and honest process.

About the Author

Senator Edward M. Kennedy has represented Massachusetts in the United States Senate for 45 years.